The common law “APEX Doctrine,” which grants protection to high-level government officials from abusive discovery through depositions, has found its way into the Florida Rules of Civil Procedure. The doctrine was added to the Florida Rules, which govern state court civil proceedings, on August 26, 2021 via an opinion issued by the Supreme Court of Florida amending Rule 1.280. Additionally, the Court broadened the scope of the doctrine, extending its reach to high-level corporate officers of non-governmental entities in civil proceedings.
The stage was set for this amendment following the First District Court of Appeals’ holding in the 2019 case Suzuki Motor Corp v. Winckler, in which Mr. Suzuki himself was sought to be deposed. In its opinion, the appellate court stated that the APEX Doctrine could not be applied to corporate officials, and further noted, “no Florida court has adopted the apex doctrine in the corporate context.” 1 The Florida Supreme Court disagreed with the appellate court’s ruling on the application of the APEX Doctrine, and through its opinion immediately amended the Florida Rules to include the APEX Doctrine.
Rule 1.280 now includes a new subsection (h), titled “APEX Doctrine,” which reads as follows:
(h) Apex Doctrine. A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking the deposition demonstrates that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information. The court may vacate or modify the order if, after additional discovery, the party seeking the deposition can meet its burden of persuasion under this rule. The burden to persuade the court that the officer is high-level for purposes of this rule lies with the person or party opposing the deposition. 2
It is important to note that Rule 1.280(h) does not operate to grant automatic protection for high-level corporate officers. Before being granted immunity from depositions, high-level officers have the burden of (1) persuading the court that they meet the high-level officer requirement, and (2) to produce an affidavit or declaration explaining the official’s lack of unique, personal knowledge of the issues being litigated.3
Rule 1.280(h) is effective immediately and applies to pending civil cases, meaning parties in litigation should be aware of its existence and application where relevant.
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